The National Assembly of the Republic of Slovenia must remedy the unconstitutionality established in the preceding Point within one year of the publication of this Decision in the Official Gazette of the Republic of Slovenia.

Until the established inconsistency is remedied, individuals are ensured judicial protection against a final order rejecting a suspension of enforcement in accordance with Article 156a of the Construction Act in proceedings for the judicial review of administrative acts; the filing of a motion to suspend enforcement in accordance with Article 156a of the Construction Act, the filing of an appeal against an order rejecting a suspension of enforcement in accordance with Article 156a of the Construction Act, and the filing of a lawsuit before the Administrative Court result in the suspension of the inspection measure of the removal of a building. Enforcement may be suspended multiple times.

In the sense of the right to reside peacefully in a specific place, the right to respect for home protects an individual’s social and emotional bonds with the place the individual considers to be his or her home. An individual’s social identity, which is connected to the feeling of belonging in a certain place, is part of the spatial aspect of privacy. Individuals are therefore protected against measures that entail an interference with their right to respect for home within the framework of the right determined by the first paragraph of Article 36 of the Constitution.

In inspection procedures regarding illegal buildings, the right to respect for home ensures natural persons that the building they live in will not be removed as long as there exist circumstances that render such an interference with their right to respect for home disproportionate. In instances where a building in which a natural person lives is to be removed, the right to respect for home stemming from the first paragraph of Article 36 of the Constitution also protects the physical existence of the place (i.e. the building) as such.

In connection with inspection procedures regarding illegal buildings, the right to respect for home does not entail that in instances where the removal of a specific building would disproportionately interfere with the right to respect for home the state has to legalise such building merely due to this reason. The right to respect for home does not entail that the state has to provide substitute housing to the affected natural persons in all such instances. The exercise of the right to respect for home does not affect property rights or contractual rights.

The loss of a home is the most severe interference with the right to respect for home. The statutory regulation of the coercive enforcement of a decision issued in an inspection procedure regarding an illegal building entails an interference with the right to respect for home that is protected within the framework of the first paragraph of Article 36 of the Constitution.

The first part of the second paragraph of Article 36 of the Constitution determines the specific criteria for the admissibility of an interference with the right to respect for home. The removal of a building that an individual deems to be his or her home is only admissible on the basis of a prior court decision.

A statutory regulation that does not ensure prior judicial control of the proportionality of an interference with the right to respect for home entails an inadmissible interference with this right. As the regulation of inspection procedures regarding illegal buildings does not ensure that an interference with the right to respect for home is based on a prior judicial decision, Articles 152 and 156a of the Construction Act are inconsistent with the first paragraph of Article 36 of the Constitution.

A statutory regulation that does not ensure prior judicial protection of the right to respect for home to all persons who are subject to an inspection entails a disproportionate interference with the right to respect for home.

2. The National Assembly of the Republic of Slovenia must remedy the unconstitutionality established in the preceding Point within one year of the publication of this Decision in the Official Gazette of the Republic of Slovenia.

3. Until the established inconsistency is remedied, individuals are ensured judicial protection against a final order rejecting a suspension of enforcement in accordance with Article 156a of the Construction Act in proceedings for the judicial review of administrative acts; the filing of a motion to suspend enforcement in accordance with Article 156a of the Construction Act, the filing of an appeal against an order rejecting a suspension of enforcement in accordance with Article 156a of the Construction Act, and the filing of a lawsuit before the Administrative Court result in the suspension of the inspection measure of the removal of a building. Enforcement may be suspended multiple times.

1. The applicant requests a review of the constitutionality of Article 152 of the Construction Act (hereinafter referred to as the CA-1), which regulates inspection measures in connection with illegal construction. The mentioned Article of the CA-1 is allegedly inconsistent with Article 2 of the Constitution as it does not take into consideration the specific circumstances characteristic of illegal buildings in existing Roma settlements and does not determine additional conditions for the adoption of inspection measures in instances of illegal buildings in existing Roma settlements. Proceedings for the judicial review of administrative acts were initiated by a person who was subject to an inspection and who is a member of the Roma community. He challenges the inspection decision requiring him, as the investor in an illegal building, to remove the building and restore the previous situation. He allegedly built the house in which he lives with his wife and their five children with the tacit permission of the local authorities already in the year 2000. The house has been their home ever since.

2. The applicant states that on the basis of Article 65 of the Constitution, which determines the status and special rights of the Roma community, the legislature adopted the Roma Community in the Republic of Slovenia Act (Official Gazette RS, No. 33/07 – hereinafter referred to as the RCRSA-1) and thereby regulated, inter alia, the special right of the Roma community with regard to the spatial integration of Roma settlements. In spite of such, it failed to regulate one of the aspects of the implementation of that right in the CA-1 – i.e. the application of inspection measures in instances of illegal buildings in Roma settlements. In the applicant’s opinion, the legislature should have determined additional conditions subject to which inspection measures in accordance with Article 152 of the CA-1 could be applied in instances of illegal buildings in existing Roma settlements. The existing legal regulation allegedly enables the state and municipalities to avoid the issue of the spatial integration of Roma settlements whose existence they have tolerated for decades.

3. The applicant further asserts that individual inspection decisions requiring the demolition of illegally constructed buildings in Roma settlements could lead to the demolition of buildings that entail the homes of Roma families. This would allegedly result in a situation comparable to the one considered by the European Court of Human Rights (hereinafter referred to as the ECtHR) in its Judgment in Yordanova and others v. Bulgaria, dated 24 April 2012, by which the ECtHR established a violation of Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms (Official Gazette RS, No. 33/94, MP, No. 7/94 – hereinafter referred to as the ECHR). In the applicant’s view, the Act Amending the Construction Act (hereinafter referred to as the CA-1E) enables suspension of the enforcement of inspection measures with regard to illegal buildings; however, it allows for such only once and for a period not exceeding one year. The applicant questions whether the competent authorities would be able to resolve the issue of the spatial integration of a specific Roma settlement within one year. It similarly questions whether the building at issue can potentially be legalised. It proposes that the Constitutional Court establish that Article 152 of the CA-1 is inconsistent with Article 2 of the Constitution and require the legislature to remedy the established inconsistency within a specified period of time. In addition, it proposes that the Constitutional Court determine the manner of implementation of its decision by declaring that, until the adoption of an adequate amendment of the statutory regulation, inspection procedures that have already been initiated shall be stayed and no new procedures may be initiated.

4. The National Assembly replied that the spatial integration of Roma settlements is being implemented through the planning of adequate spatial regulations that can be of local or of national significance. The National Assembly adopted a set of special recommendations after considering the report of the Human Rights Ombudsperson regarding the living conditions of the Roma in the south-eastern part of Slovenia.[1] Two recommendations are highlighted in the reply, namely (1) that the municipalities that have not yet included Roma settlements in their spatial acts should undertake the preparation of the necessary acts as well as the preparation of other measures for the legalisation of Roma settlements and their integration into the municipal infrastructure, and (2) that in the preparation of concrete measures – in the framework of the National Programme of Measures for the Roma for the Period 2010–2015 of the Government of the Republic of Slovenia – special attention should also be devoted to the legalisation of Roma settlements and their integration into the municipal infrastructure. In the opinion of the National Assembly, the request to review the constitutionality of Article 152 of the CA-1 specifies neither the special circumstances characteristic of illegal buildings in Roma settlements nor the additional conditions subject to which inspection measures could be applied in instances of illegal buildings in Roma settlements. The National Assembly assesses that there exist no objectively substantiated reasons to include the specific legal regulation of Roma settlements in the provision regulating inspection measures with regard to illegal buildings. A regulation that determined special conditions for different categories of settlements or for different buildings within Roma settlements as regards the implementation of inspection measures could entail an interference with the general principle of equality before the law.

5. In the view of the Government, the regulation determined in Article 152 of the CA-1 is not unconstitutional. The alleged unconstitutional legal gap in the CA-1 with regard to respect for the right to appropriate housing or respect for home was allegedly remedied by the CA-1E, which introduced Article 156a of the CA-1. In accordance with this provision of the CA-1, enforcement of an inspection measure may be suspended if the person who is subject to the inspection demonstrates that it concerns a residential building in which he or she or other persons who do not have at their disposal other appropriate housing in accordance with the criteria determined by Article 10 of the Housing Act (Official Gazette RS, No. 69/03, 57/08, and 87/11 – hereinafter referred to as the HA-1) have in fact and without interruption lived in that building at least since the initiation of the inspection procedure. By adopting this regulation, the legislature allegedly ensured the proportionality of inspection measures in instances of illegal buildings in Roma settlements. The Government also refers to the HA-1, which enables individuals in the most dire financial situations to obtain non-profit rental housing as a long-term solution to their housing and financial difficulties or to be assigned a residential unit as a temporary solution for such difficulties. The mentioned measures determined by construction and housing legislation allegedly also fulfil the requirements stemming from the positions of the ECtHR. The Government does not agree with the Administrative Court that the suspension of enforcement for one year is not a sufficiently long period of time to enable an investor in an illegal building to either obtain a building permit in accordance with the prescribed conditions or to solve his or her housing difficulties on the basis of the HA-1. The Government emphasises that the legislation in the fields of spatial planning and construction is primarily intended for the protection of the public interest that is expressed in the requirements ensuring the safe use of buildings, a safe living environment, feasible use of land, and the protection of other constitutional values. The establishment of the right to build in a procedure to issue a building permit allegedly also indirectly protects the right to private property. According to the statements of the Government, the ECtHR also has not denied the protection of these rights in its judgments. In the mentioned judgment, the ECtHR emphasised that, when regulating enforcement and eviction, the legislature has to take into consideration the principle of proportionality by deliberating the necessity of the removal of an illegally constructed building and, if removal is necessary, by providing a sufficiently long period of time for the removal and by ensuring an appropriate manner of eviction as well as adequate substitute housing. In the opinion of the Government, the CA-1 and HA-1 enable such.

B – I

6. The applicant asserts that Article 152 of the CA-1, which regulates the issuance of an administrative decision by which a building inspector requires a person who is subject to an inspection and who is a member of the Roma community in an illegal Roma settlement to remove an illegally constructed building, is inconsistent with the right to respect for home enshrined in Article 8 of the ECHR. As all natural persons enjoy the right to respect for home, the Constitutional Court did not limit its review only to the position of members of the Roma community who live in illegal Roma settlements, but reviewed the challenged statutory regulation from the perspective of all natural persons who are subject to inspections with regard to illegal buildings.

7. When deciding on the constitutionality and legality of a regulation, the Constitutional Court is not bound by the proposal stated in the request, but may also review the constitutionality and legality of other provisions of the same or of another regulation regarding which a review of constitutionality or legality has not been requested if such provisions are mutually related or if such is necessary to resolve the case (Article 30 of the Constitutional Court Act, Official Gazette RS, Nos. 64/07 – official consolidated text, and 109/12 – hereinafter referred to as the CCA). Article 156 of the CA-1 regulates suspension of the enforcement of inspection measures regarding illegal buildings, buildings constructed or used contrary to the building permit, and buildings used without the required occupancy permit (hereinafter referred to as suspension of enforcement in accordance with Article 156a of the CA-1). As the enforcement of a decision issued on the basis of Article 152 of the CA-1 may be suspended on the basis of Article 156a of the CA-1, Articles 152 and 156a of the CA-1 are mutually related in such a manner that, in the light of the applicant’s assertions, a separate review of the two provisions is not possible. Article 2 of the CA-1E determines when Article 156a of the CA-1 may be applied. Consequently, the resolution of the case at issue requires that the Constitutional Court also take into consideration this provision. Therefore, on the basis of Article 30 of the CCA, the Constitutional Court initiated proceedings to review the constitutionality of Article 156a of the CA-1 and Article 2 of the CA-1E. As Articles 156a of the CA-1 and Article 2 of the CA-1E do not raise any new questions with regard to the review of constitutionality and their content does not exceed the framework of the statements and claims contained in the request, the Constitutional Court deemed that the National Assembly already had a possibility to clarify its positions in its reply to the request.

B – II

8. The term home has multiple meanings. A home is a physical space that provides an individual[2] protection from his or her surroundings. At the same time, a home is a private space in which an individual can live as he or she wishes, thus realising his or her individual identity. By settling in a specific place, an individual develops a feeling of belonging to such place and a relationship with the community surrounding him or her. An individual needs a home, an address, or a space to which he or she is officially and legally bound by the intention to conduct most of his or her personal business from there and in order to be able to vote and to exercise different rights.[3] A home is an essential element of an individual’s social identity.

9. According to the position of the ECtHR, the aim of Article 8 of the ECHR is to protect the rights that are of central importance to an individual’s identity, self-determination, physical and moral integrity, maintenance of relationships with others, and a settled and secure place in the community.[4] Within the framework of Article 8 of the ECHR, individuals are also ensured the right to respect for home. It follows from the case law of the ECtHR that the term home included in Article 8 of the ECHR is an autonomous concept that does not depend on the regulation under domestic law. One’s home is not only protected in a functional sense, but on a symbolic level as well. The right to respect for home protects the spatial and social aspects of privacy that are related to the essence of the right to respect for family and private life.[5] As can be derived from its case law, the ECtHR protects three values within the framework of the right to respect for home, namely security, privacy, and an individual’s social and emotional attachment to a specific place.[6]Whether an individual’s residence in a specific place already entails his or her home depends on the factual circumstances, the most important of which is a sufficient and continuous connection with a specific place.[7] The right to respect for home accords an individual the right to a private space in which he or she can live without external interferences and in accordance with his or her own ideas and convictions. The right to respect for home is primarily intended to protect the individual from state interferences with his or her protected living space.[8] A home can also be a place or building that has been illegally occupied by an individual or that has been illegally erected or constructed.[9]

10. The ECtHR emphasised that an interference with the right to respect for home is only admissible if it (a) is in accordance with the law, (b) pursues a legitimate aim under the second paragraph of Article 8 of the ECHR, and (c) is necessary in a democratic society.[10] In the framework of the last criterion, the ECtHR considers a number of circumstances. Individuals must be ensured an adequate procedure in which they can effectively protect their right to respect for home.[11] They must be ensured a possibility to also invoke their personal circumstances in a review of the proportionality of an interference with their right to respect for home.[12] Such entails that individuals must be ensured that the admissibility of an interference with their right to respect for home is reviewed in adversarial proceedings before an independent body, even if the affected individual does not have a right to occupy the relevant space under domestic law.[13] An interference with the right to respect for home cannot be justified simply due to the fact that it is based on a general legal norm that does not allow for any exceptions. The mere possibility of the judicial review of an administrative decision that entails the loss of a home does not suffice. Individuals must have the right to challenge such decision due to an excessive interference with their right to respect for home in the light of their personal circumstances.[14] The competent bodies must be authorised to prevent an excessive interference with the right to respect for home. They must also verify whether there exist other, less invasive, measures.[15]

11. Hitherto, the Constitutional Court has not decided whether an individual’s social and emotional bonds with a place that this individual considers his or her home also enjoy constitutional protection. Such concerns the right to respect for home as the right to reside peacefully in a specific place. In its decisions the Constitutional Court clarified that the Constitution does not expressly guarantee the right to a home in the sense of the right to reside in a specific place.[16] It stated that such does not entail that this right is not grounded in treaties that are binding on the Republic of Slovenia.[17] However, the fact that the Constitution does not explicitly regulate the right to respect for home does not entail that in the Republic of Slovenia this right is not guaranteed directly on the basis of constitutional provisions. An individual’s social identity that results from the feeling that he or she belongs to a certain place is linked to the spatial aspect of privacy. The right to respect for home is thus protected by the first paragraph of Article 36 of the Constitution. Individuals are protected against measures that entail an interference with their right to respect for home on the basis of the first paragraph of Article 36 of the Constitution.

12. The Constitutional Court has already adopted positions regarding the content of the general right to privacy as well as the spatial aspect of the privacy of natural persons.[18] It held that the act of residing or living – whereby the material environment in which such takes place is, as a general rule, a residence, home, or dwelling – is a typical and essential aspect of an individual’s privacy. The factual and exclusive authority over the space of a dwelling and over everything material in it is an essential part and a precondition for residing in a specific place as part of an individual’s privacy.[19] The Constitutional Court adopted the position that the right to the inviolability of dwellings (the first paragraph of Article 36 of the Constitution) does not protect premises as such, but an individual’s privacy on such premises. It held that the first paragraph of Article 36 of the Constitution protects a dwelling in the sense of protecting privacy on residential premises where an individual reasonably expects privacy and deems such premises to be his or her residential premises. The essence of such privacy lies in an individual’s intention to reside in a space where he or she can lead his or her private life, and such privacy is protected against any interference against the will of the resident of that space.[20]

13. The right to respect for home protects an individual’s social and emotional bonds with a place (or a building) that this individual considers his or her home. In inspection procedures regarding an illegal building, the right to respect for home ensures individuals that the building they live in will not be removed as long as there exist circumstances that render such an interference with their right to respect for home disproportionate. A procedure for the removal of an illegal building entails not only an interference with privacy, but also the loss of a physical space that is an individual’s home. Such requires that the Constitutional Court amend its position with regard to the content of the right stemming from the first paragraph of Article 36 of the Constitution to a certain degree. In instances of the removal of a building in which a natural person lives, the right to respect for home stemming from the first paragraph of Article 36 of the Constitution thus also protects the existence of the building as a physical space.[21]

14. The right to respect for home does not entail that in instances when the removal of a specific building would disproportionately interfere with the right to respect for home the state has to legalise such building merely due to this reason. With regard to measures connected with illegal buildings, it must be taken into account that the state does not have to tolerate an illegal building indefinitely.[22] The right to respect for home further does not entail that the state has to provide substitute housing to the affected individuals in all such instances.[23] The exercise of the right to respect for home as such also cannot affect property rights or contractual rights.

15. The conditions for limitations of the right to respect for home, which is enshrined in the first paragraph of Article 36 of the Constitution, are included in the following paragraphs of the Article. The constitution framers deemed that, in addition to the general conditions for the admissibility of an interference with a human right determined by the third paragraph of Article 15 and Article 2 of the Constitution, special procedural safeguards that ensure the proportionality of an interference with the right to respect for home have to be observed as well. The first part of the second paragraph of Article 36 of the Constitution serves as the legal basis for a review of the admissibility of an interference with the right to respect for home in connection with the removal of a building that is an individual’s home. In accordance with this provision, a resident’s personal space may only be entered against his or her will on the basis of a prior court order. The inspection measure of the removal of a building entails not only that a private space is entered, but also the loss of the space in which an individual lives. The loss of a home is the most severe interference with the right to respect for home.[24] Such entails that – before a measure entailing the loss of a home is enforced against a natural person – in accordance with the first part of the second paragraph of Article 36 of the Constitution, this person must be guaranteed prior judicial control of the proportionality of the measure entailing an interference with his or her right to respect for home.

16. The Constitution determines special conditions for the admissibility of interferences with spatial privacy in the remainder of the second paragraph and in the third and fourth paragraphs of Article 36 of the Constitution. Pursuant to the fifth paragraph of Article 36 of the Constitution, a law may determine in further detail the conditions subject to which an official may enter the dwelling or other premises of another person without a court order and conduct a search in the absence of witnesses. The provisions that regulate the exercise of inspection procedures in connection with illegal buildings are not intended to allow interferences with privacy in order to conduct a search or to regulate in further detail the conditions for the urgent apprehension of perpetrators of criminal offences and the protection of persons and property in dwellings and on other premises of third parties. Therefore, the second part of the second paragraph and the third, fourth, and fifth paragraphs of Article 36 of the Constitution are not relevant for the review of the constitutionality of the legislation in the field of inspection measures in connection with illegal buildings.

17. It has to be noted that not every inspection measure of the removal of a building entails an interference with the right to respect for home. A person who is subject to an inspection carries the burden of allegation and the burden of proof, i.e. of alleging and establishing all circumstances that are important for the protection of his or her right to respect for home.[25] If the question of the protection of the right to respect for home arises in an inspection procedure with regard to an illegal building, the affected natural person must have the possibility to challenge the decision due an excessive interference with the right to respect for home in the light of his or her personal circumstances. This entails that in an inspection procedure regarding an illegal building the person who is subject to the inspection must be guaranteed the possibility to invoke all circumstances affecting his or her right to respect for home in adversarial proceedings before the removal of the building in question. The competent court must be authorised to prevent an excessive interference with the right to respect for home. In the proceedings the court must have the jurisdiction and the duty to consider all relevant circumstances and must be authorised to impose measures for the protection of the right to respect for home if the circumstances of a specific case indicate that the removal of a building would entail an excessive interference with this right.[26]

18. A weighing of all of the circumstances that are important for the review of whether the removal of a specific building entails an excessive interference with the right to respect for home may only be carried out in an individual case.[27] When assessing whether the removal of a building in an individual case entails an excessive interference with the right to respect for home, the court must take into account whether the building in question is an individual’s home, whether the individual resides in the building illegally and whether he or she has been aware of this illegality, the nature and extent of the illegality, and the legal nature of the public interest that will be protected by the demolition of the building.[28] It must also take into account the duration of the residence and the degree to which the individual is connected with the place in question.[29] The competent authorities and the court must assess the risk that the affected individuals become homeless following the removal of the building and their possibility to obtain housing with the assistance of the state.[30]

19. An important factor of the court’s deliberation is also the question of whether the person who is subject to the inspection is a member of an underprivileged or vulnerable social group.[31] Members of the Roma community are members of a particularly vulnerable social group.[32] Article 65 of the Constitution determines that the status and special rights of the Roma community living in the Republic of Slovenia shall be regulated by law. This constitutional provision entails the legislature’s authorisation to grant, by law, the Roma community that lives in the Republic of Slovenia as a specific ethnic community special rights in addition to the general rights enjoyed by everyone. The constitutional authorisation determined by Article 65 of the Constitution allows the legislature to ensure the Roma community and its members special (i.e. additional) protection, which is referred to by scholars as so-called positive discrimination or positive protection. The positive protection that the majority nationality recognises to national, ethnic, linguistic, and other communities (i.e. minorities) expresses the readiness of the state to promote and implement the rights of the mentioned communities as part of the democratic development of the society (state) as a whole.[33] The legislature enjoys a wide margin of appreciation with regard to the selection of the type and content of the measures by which the legislature grants to the Roma community special rights in addition to the general rights enjoyed by everyone.[34] The fundamental law that regulates the special rights of the Roma community in the Republic of Slovenia, the competences of state authorities and the authorities of local communities with regard to the exercise of these rights, and the participation of the representatives of the Roma community in the implementation of their rights and obligations determined by law is the RCRSA-1. The legislature granted the Roma community special rights with regard to the establishment of the conditions for resolving the issue of the spatial integration of Roma settlements or areas where members of the Roma community live. Article 5 of the RCRSA-1 determines the obligation that, during the preparation of spatial acts, municipalities, and in exceptional cases the Government, consider and assess – in light of expert findings regarding the properties and capacities of an area and on the basis of an analysis of the state of the area – the possibilities as to directing spatial development and determining development restrictions in areas where members of the Roma community already live, as well as possibilities as to the rehabilitation of such areas, insofar as they entail degraded areas. When reviewing the proportionality of an interference with the right to respect for home in instances concerning the illegal buildings of members of the Roma community, courts must therefore also take into account whether the special right of the Roma community in the field of spatial planning determined by Article 5 of the RCRSA-1 has been ensured to the members of this community. The principle of proportionality further requires that courts treat instances of the removal of illegal buildings in Roma communities that have lived in a certain place for a long period of time differently than individual instances of the removal of individuals from land on which they have built illegally.[35] This is even more true if an illegally constructed Roma settlement has existed continuously for several years or even decades with the tacit or express consent of a local community.

20. The ECtHR also established the requirement of a prior court decision as one of the conditions for ensuring the proportionality of an interference with the right to respect for home when the interference is very invasive.[36] In instances when the competent state authorities intensely interfere with the right to respect for home by exercising their statutorily determined authorisations, from the viewpoint of the requirement of a prior court order authorising the measure, an equal level of protection of the constitutional right to respect for home is guaranteed by both the Constitution and the ECHR. Therefore, in the case at issue, the constitutional review has to be conducted from the perspective of the Constitution.

21. The requirements stemming from the first paragraph and the first part of the second paragraph of Article 36 of the Constitution are also binding on the legislature. In the proceedings for the review of the statutory regulation that is the legal basis for the inspection measure of the removal of a building, the Constitutional Court must take into account all of the stages of the procedure, from the initiation of the inspection procedure until the enforcement of the decision.[37] In accordance with the position of the ECtHR, protection of the right to respect for home may namely be ensured in enforcement proceedings.[38] Therefore, hereinafter the Constitutional Court, taking into account the premises outlined in the preceding paragraphs of this reasoning, assessed whether the regulation determined in Articles 152 and 156a of the CA-1 observes the constitutional requirements stemming from the first paragraph and the first part of the second paragraph of Article 36 of the Constitution.

B – III

Review of Articles 152 and 156a of the CA-1

22. Article 152 of the CA-1 determines: “In instances of illegal buildings, a competent building inspector declares that the construction shall cease immediately and that the building or part of the building that has already been constructed shall be removed within a specified period of time at the cost of the person who is subject to the inspection and the previous situation shall be restored or, if the previous situation cannot be restored, that the building, part of the building, or land shall be remedied by other means.”

23. The cited provision constitutes the legal basis for inspection procedures in instances of illegal buildings.[39] On the basis of the challenged provision, the building inspector, once it has been determined that the building is illegal, declares that the person who is subject to the inspection must remove the building.[40] The inspector must determine a deadline by which the person who is subject to the inspection shall fulfil his or her obligation him- or herself. When determining the deadline for remedying the irregularity, the inspector must take into account the principle of proportionality, the severity of the violation, its consequences for the public interest, and the circumstances that determine the time frame in which the natural person who is subject to the inspection can remedy the irregularity with due care (the third paragraph of Article 7 of the Inspection Procedure Act, Official Gazette RS, Nos. 43/07 – official consolidated text, and 40/14 – hereinafter referred to as the IPA). An individual can lodge an appeal against the inspector’s decision, which does not suspend its enforcement (Article 30 of the IPA). Judicial protection is ensured in proceedings for the judicial review of administrative acts.

24. As an appeal against a decision requiring the removal of a building does not suspend its enforcement (Article 30 of the IPA), the competent authority can commence the enforcement proceedings right after the implementation deadline expires. In accordance with the first paragraph of Article 291 of the General Administrative Procedure Act (Official Gazette RS, Nos. 24/06 – official consolidated text, 126/07, 65/08, 8/10, and 82/13 – hereinafter referred to as the GAPA), the administrative enforcement procedure is conducted on the basis of an enforceable decision and an order authorising the enforcement. However, in the procedure for issuing an enforcement order the competent body does not review the legality of the decision to be enforced.[41] An appeal against the enforcement order can be lodged only for reasons related to the enforcement (the first paragraph of Article 292 of the GAPA).

25. In its reply the Government stated that by Article 156a of the CA-1[42] the legislature regulated a special form of the suspension of enforcement in instances of illegal buildings in order to ensure protection of the right to respect for home with regard to the removal of objects in accordance with the requirements that follow from the case law of the ECtHR. It also follows from the legislative materials in connection with the CA-1E[43] and the Act Amending the Construction Act (Official Gazette RS, No. 19/15 – CA-1F)[44] that the legislature regulated this special form of the suspension of enforcement for this reason. In light of such, the Constitutional Court also considered the regulation of the suspension of enforcement in accordance with Article 156a of the CA-1 throughout the proceedings for the review of the statutory regulation that is the legal basis for the inspection measure of the removal of a building.

26. On the basis of Article 156a of the CA-1, a person who is subject to an inspection may request the competent authority to suspend enforcement immediately after the order authorising the enforcement is issued.[45] The first paragraph of Article 156a of the CA-1 determines the grounds that enable the suspension of an administrative enforcement procedure. An individual may, inter alia, request a suspension of enforcement in accordance with Article 156a of the CA-1 if the object of the enforcement is a residential building in which the person who is subject to the inspection or other persons who do not have at their disposal other appropriate housing have in fact and without interruption lived at least since the initiation of the inspection procedure (the first indent of the first paragraph of Article 156a of the CA-1). In these instances, the enforcement may be suspended only once and only for a period of up to five years (the first indent of the second paragraph of Article 156a of the CA-1). The lodging of a motion to suspend enforcement does not have a suspensive effect on the enforcement.[46] The building inspector decides on the suspension of enforcement by means of an order. The affected individual may lodge an appeal against this order, which is decided on by the competent ministry; however, the appeal does not suspend the enforcement procedure (the third paragraph of Article 292 of the GAPA). It follows from the case law of the Supreme Court that a decision by which a motion to suspend enforcement is rejected is not an administrative act in the sense of Article 2 of the Judicial Review of Administrative Acts Act (Official Gazette RS, Nos. 105/06, 62/10, and 109/12 – hereinafter referred to as the JRAAA-1).[47] Such entails that, in accordance with the established case law, an individual may not initiate the judicial review of a final order rejecting a motion to suspend enforcement.

27. The Constitutional Court had to decide whether the outlined statutory regulation of inspection measures with regard to illegal buildings, including their enforcement or the suspension thereof, constitutes an interference with the right to respect for home stemming from the first paragraph of Article 36 of the Constitution. A competent building inspector’s decision that a building is illegal and that the person who is subject to the inspection has to remove it does not of itself entail the loss of the home of this person or his or her family. The loss of their home occurs if the inspection decision is enforced and the building is in fact removed.[48] The coercive enforcement of the decision adopted on the basis of Article 152 of the CA-1 in an enforcement procedure in which the competent authorities remove the building that constitutes the home of the person who is subject to the inspection against the will of such person thus entails the interference with the right to respect for home.

28. The statutory regulation of the coercive enforcement of a decision issued in an inspection procedure regarding an illegal building thus entails an interference with the right to respect for home that is protected within the framework of the first paragraph of Article 36 of the Constitution. The admissibility of an interference must first be reviewed within the framework of the specific criteria determined by the first part of the second paragraph of Article 36 of the Constitution. In accordance with the first part of the second paragraph of Article 36 of the Constitution, the removal of a building that is the home of a natural person against the will of the person who is subject to an inspection is only admissible if it is based on a prior judicial decision.

29. On the basis of Article 152 of the CA-1, following the finding that a building is illegal, a building inspector must impose the measure of the removal of the building regardless of the concrete circumstances of the person who is subject to the inspection. This provision does not enable the inspector to impose a milder measure instead of the prescribed one or to not impose any measure at all.[49] In the inspection procedure, the inspector must only establish facts and present evidence that are important for the decision on whether the building is illegal. When setting the deadline, the inspector’s review is limited to the circumstances that influence the possibility to effectively enforce the administrative decision, and not a review of the circumstances that influence the exercise of the right to respect for home. Consequently, when reviewing the legality of an administrative decision, neither the appellate authority nor the Administrative Court can take into account circumstances that are not essential for the inspector’s decision-making in the light of the statutory regulation. This entails that a person who is subject to an inspection cannot achieve a substantive review of the proportionality of the interference with his or her right to respect for home by means of an appeal against a decision issued on the basis of Article 152 of the CA-1. In addition, the lodging of an appeal or a lawsuit does not suspend enforcement. The enforcement of a decision adopted on the basis of Article 152 of the CA-1 is admissible already before the appellate authority or a court decided on the legal remedies.

30. It follows from the first indent of the first paragraph of Article 156a of the CA-1 that the competent authority may suspend enforcement due to circumstances that are important from the perspective of the right to respect for home. This entails that in the procedure for the suspension of enforcement in accordance with Article 156a of the CA-1 the person who is subject to an inspection is ensured a concrete review of the proportionality of an interference with his or her right to respect for home. However, the building inspector decides on the suspension of enforcement by means of an order. The individual may lodge an appeal against this order, which is decided on by the competent ministry. The lodging of a motion to suspend enforcement does not have a suspensive effect on the enforcement.[50] It follows from the case law of the Supreme Court that a decision by which a motion to suspend enforcement is rejected is not an administrative act in the sense of Article 2 of the JRAAA-1, entailing that in the procedure for a suspension of enforcement judicial protection of the right to respect for home is not ensured.[51] The removal of a building that entails an interference with the right to respect for home is thus based on the decision of a building inspector, not a judicial decision.

31. The finding of the Constitutional Court that persons who are subject to an inspection are not ensured judicial control of the proportionality of an interference with the right to respect for home in inspection procedures is decisive for the review of the admissibility of an interference with the right to respect for home. The regulation contained in Articles 152 and 156a of the CA-1 namely allows for an interference with the right to respect for home on the basis of an administrative decision, not on the basis of a prior judicial decision.[52] This refers to inspection procedures that have a substantive character (i.e. establishing that a building is illegal) as well as to enforcement procedures.

32. As the regulation of inspection procedures regarding illegal buildings contained in Articles 152 and 156a of the CA-1 does not ensure that an interference with the right to respect for home resulting from the removal of a building is based on a judicial decision by which a court scrutinised the proportionality of the interference, Articles 152 and 156a of the CA-1 inadmissibly restrict, contrary to the first part of the second paragraph of Article 36 of the Constitution, the constitutional right to respect for home guaranteed by the first paragraph of Article 36 of the Constitution.

33. It is not possible to abrogate Articles 152 and 156a of the CA-1. The abrogation of Article 152 of the CA-1 would prevent inspection measures with regard to illegal construction also in instances where the right to respect for home was not at risk. Furthermore, the abrogation of Article 156a of the CA-1 would deprive persons who are subject to inspection of any possibility to prevent the enforcement of the inspection measure of the removal of a building. This would be problematic from a public interest perspective as well as from the perspective of the protection of the right to respect for home. Therefore, on the basis of the first paragraph of Article 48 of the CCA, the Constitutional Court adopted a declaratory decision (Point 1 of the operative provisions). In accordance with the second paragraph of Article 48 of the CCA, it required the legislature to remedy the unconstitutionality established in Point 1 of the operative provisions within one year from the publication of this Decision in the Official Gazette of the Republic of Slovenia (Point 2 of the operative provisions). In order to satisfy the requirements stemming from the first paragraph and the first part of the second paragraph of Article 36 of the Constitution, the legislature will have to comprehensively regulate the protection of the right to respect for home in inspection procedures regarding illegal buildings. It will have to ensure prior judicial control of the proportionality of interferences with the right to respect for home in inspection procedures regarding illegal buildings and ensure that in individual procedures the courts will have the authorisation required for the effective protection of the right to respect for home. The legislature can ensure prior judicial protection from interferences with the right to respect for home either in the procedure for issuing an inspection decision with regard to an illegal building or in enforcement proceedings. At the same time, the legislature will have to ensure adequate protection of the public interest by means of effective inspection measures and prevent abuses of rights in inspection procedures.

34. As the decision of the Constitutional Court [establishing an unconstitutionality] would not have eliminated the possibility of further inadmissible interferences with the right to respect for home, the Constitutional Court determined the manner of the implementation of its Decision on the basis of the second paragraph of Article 40 of the CCA (Point 3 of the operative provisions). In doing so, it took into account that a complex statutory regulation will have to be enacted in order to remedy the established inconsistency with the Constitution and determined the manner of implementation within the framework of existing institutions. In light of the above, it determined that until the established inconsistency is remedied, persons who are subject to inspections are ensured judicial protection against a final order rejecting a suspension of enforcement in accordance with Article 156a of the CA-1 in proceedings for the judicial review of administrative acts; the filing of a motion to suspend enforcement in accordance with Article 156a of the CA-1, the filing of an appeal against an order rejecting a suspension of enforcement in accordance with Article 156a of the CA-1, and the filing of a lawsuit before the Administrative Court shall result in the suspension of the inspection measure determined by Article 152 of the CA-1, whereby enforcement may be suspended multiple times. In accordance with the statutory regulation currently in force (the first indent of the second paragraph of Article 156a of the CA-1), enforcement may namely only be suspended once and only for a period of up to five years. This entails that upon the expiry of these five years a person who is subject to an inspection does not have another possibility to request a suspension of enforcement and thus no possibility to prevent the loss of his or her home. However, in the opinion of the Constitutional Court, one cannot exclude that in exceptional instances circumstances that are important from the perspective of the right to respect for home may outweigh the requirement of a lawful situation in the field of construction also after the expiry of these five years. Such circumstances could also arise in connection with the consideration of illegal buildings of members of the Roma community as a particularly vulnerable group in instances when the state and municipalities would not effectively implement their obligations on the basis of the RCRSA-1 in the field of spatial planning or in connection with the consideration of buildings of a Roma community that has illegally resided in a specific area over a long period of time with the knowledge of state and municipal authorities.[53] By means of such manner of implementation of this Decision, observance of the right to respect for home in connection with conducted inspection measures will be ensured in judicial proceedings.

35. As the Constitutional Court established the unconstitutionality of Articles 152 and 156a of the CA-1 already due to their inconsistency with the right to respect for home (the first paragraph of Article 36 of the Constitution), it did not review the applicant’s allegations as to the inconsistency of the statutory regulation with Article 2 in conjunction with Article 65 of the Constitution.

B – IV

Review of Article 2 of the CA-1E

36. Article 2 of the CA-1E determines that Article 156a of the CA-1 does not apply to instances when construction began after the entry into force of the CA-1E. The legislature thus determined that persons who are subject to an inspection only have the right to file a motion to suspend enforcement in accordance with Article 156a of the CA-1 if they constructed the relevant building before 28 December 2013. Persons who are (or will be) subject to inspections and who have constructed (or will construct) a building following the entry into force of the CA-1E, i.e. after 28 December 2013, do not have this possibility. The legislature thus placed persons who are (or will be) subject to inspections and who have constructed (or will construct) a building after 28 December 2013 in an unequal position with regard to protection of the right to respect for home in comparison with persons who are (or will be) subject to inspections and who constructed a building before 28 December 2013. As Article 2 of the CA-1E causes an inequality in connection with the exercise of a human right, it entails an interference with the right to respect for home, which the Constitutional Court reviews under the strict test of proportionality. As the Constitutional Court established that the regulation contained in Article 156a of the CA-1 already entails a disproportionate interference with the right to respect for home, the interference with the right to respect for home resulting from a provision that denies a specific group of persons who are subject to inspection also such (and therefore any kind of) protection is even more excessive. In light of the above, Article 2 of the CA-1E was also inconsistent with the first paragraph of Article 36 of the Constitution and therefore the Constitutional Court abrogated it (Point 4 of the operative provisions).

[5] See the ECtHR Judgments in Connors v. the United Kingdom, Para. 82, Chapman v. the United Kingdom, dated 18 January 2001, Para. 73, and Yordanova and Others v. Bulgaria, dated 24 April 2012, Para. 105.

[6]Cf. A Buyse, Strings Attached: The Concept of "Home" in the Case Law of the European Court of Human Rights, European Human Rights Law Review, No. 3 (2006).

[7] See the ECtHR Judgments in Buckley v. the United Kingdom, dated 25 September 1996, Paras. 52–54, Gillow v. the United Kingdom, dated 24 November 1986, Para. 46, and Wiggins v. the United Kingdom, dated 8 February 1978, Para. 40.

[22] See the ECtHR Judgment in Yordanova and Others v. Bulgaria, Para. 131.

[23] See the ECtHR Judgments in McCann v. the United Kingdom, Para. 99, and Yordanova and Others v. Bulgaria, Para. 130. Article 78 of the Constitution imposes an obligation upon the state and guides it in its activities in the field of housing policy. By that provision, the Constitution explicitly emphasises one of the social aspects deriving from the principle of a social state (Article 2 of the Constitution). The state shall adopt appropriate measures to create opportunities for citizens to obtain adequate housing. Thus, from the mentioned provision there follows the obligation to create an active housing policy (see B. Kresal in: L. Šturm, Komentar Ustave Republike Slovenije [Commentary on the Constitution of the Republic of Slovenia], Fakulteta za podiplomske državne in evropske študije, Ljubljana 2002, p. 762, and Constitutional Court Decision No. U-I-109/15, dated 19 May 2016 (Official Gazette RS, No. 38/16), Para. 22 of the reasoning).

[26] See the ECtHR Judgments in McCann v. the United Kingdom, Para. 50, Ćosić v. Croatia, Para. 22, and Kay and Others v. the United Kingdom, Para. 68, as well as the ECtHR Decision in J. L. v. the United Kingdom, dated 30 September 2014, Para. 45.

[28] See the ECtHR Judgment in Chapman v. the United Kingdom, Paras. 102–104.

[29] See the ECtHR Judgment in Yordanova and Others v. Bulgaria, Para. 121.

[30] See the ECtHR Judgments in Chapman v. the United Kingdom, Paras. 103 and 104 of the reasoning, and Yordanova and Others v. Bulgaria, Para. 130 of the reasoning, as well as A. Remiche, Yordanova and Others v. Bulgaria: The Influence of the Social Right to Adequate Housing on the Interpretation of the Civil Right to Respect for One’s Home, Human Rights Law Review, No. 4 (2012), p. 799.

[31] See the ECtHR Judgment in Yordanova and Others v. Bulgaria, Para. 129.

[37]Cf. the ECtHR Judgment in Zehentner v. Austria, dated 16 July 2009, Para. 54, its Decision in J. L. v. the United Kingdom, Para. 31, and the Judgment of the Supreme Court of the United Kingdom in Manchester City Council v. Pinnock, dated 3 November 2010, Para. 45.

[38]Cf. the ECtHR Decision in J. L. v. the United Kingdom, Para. 45, and the ECtHR Judgment in Ivanova and Cherkezov v. Bulgaria, Para. 58.

[39] An illegal building entails that construction or work that requires a building permit is or was performed without a valid building permit (point 12. 1. of the first paragraph of Article 2 of the CA-1).

[40] Removal of a building entails work by which the building is removed, demolished, or pulled down and the previous situation is restored (point 7. 4. of the first paragraph of Article 2 of the CA-1).

“(1) In addition to the grounds for a suspension of enforcement determined by the act regulating the general administrative procedure, with regard to illegal buildings, buildings constructed or used contrary to the building permit, and buildings used without the required occupancy permit, a building inspector shall suspend the enforcement of an inspection decision upon a motion of the person who is subject to the inspection if such person demonstrates that:

– the case concerns a residential building in which he or she or other persons who do not have at their disposal other appropriate housing in accordance with the criteria determined by Article 10 of the Housing Act (Official Gazette RS, Nos. 69/03, 18/04 , 47/06, 45/08, 57/08, 62/10, 56/11, 87/11, and 40/12) have in fact and without interruption lived at least since the initiation of the inspection procedure, or

– an economic activity has been carried out without interruption in the object at least since the initiation of the inspection proceedings and the enforcement of the inspection measure would result in the risk that the person who is subject to the inspection will suffer severe economic damage or the enforcement of the inspection procedure would be the direct reason for the dismissal of workers, whereby severe economic damage is deemed to entail permanent illiquidity or the loss of the only source of income and means of subsistence, or

– the person who is subject to the inspection lodged an application to amend the relevant spatial act and the municipality already included such in a procedure for the amendment of the spatial act and stated in writing that it will take such into account in the next amendment, or

– the person who is subject to the inspection lodged a complete request for the issuance of a building or occupancy permit.

(2) The enforcement referred to in the preceding paragraph may only be suspended once, namely:

– in the instances referred to in the first and second indents: for a period of up to five years,

– in the instances referred to in the third indent: until the spatial act enters into force, but only for a period of up to five years,

– in the instances referred to in the fourth indent: until the decision on the request for the issuance of a building or occupancy permit attains legal finality.”

[43] See the Draft of the Act Amending the Construction Act, Gazette of the National Assembly of 22 November 2013, EPA 1600 – VI – urgent procedure.

[44] See the Draft of the Act Amending the Construction Act, Gazette of the National Assembly of 6 February 2015, EPA 333 – VII – urgent procedure.

[45] The suspension of enforcement entails the provisional staying of enforcement or the provisional staying of enforcement proceedings that have already been initiated due to the fact that the enforcement is impeded by a specific circumstance that hinders the initiation or continuation of enforcement proceedings. The enforcement that was suspended continues when the impediment or grounds for suspension cease to exist; however, it may also be stayed with finality if a circumstance that hinders the continuation of enforcement proceedings arises after the suspension (see E. Kerševan, V. Androjna, op. cit., pp. 487–488).

[48]Cf. the ECtHR Judgment in Yordanova and Others v. Bulgaria, Para. 104. In Point 1 of the operative provisions of this Judgment and in Point 2 of the operative provisions of the Judgment in Ivanova and Cherkezov v. Bulgaria, the ECtHR stated that there would be a violation of Article 8 of the ECHR in the event of the enforcement of the removal order.

1. I supported the Decision without any particular reservations and I absolutely agree with its main message: the Constitution protects the right to respect for home in the sense of undisturbed residence in a specific building and the protection of the existence of such building, and every interference with this right must pass the proportionality test. In this concurring opinion I merely wish to add some thoughts on the question of which constitutional provision protects this right. During the discussions thereon, three potential paths for substantiating this right took shape: the first would derive the right to respect for home from Article 35 of the Constitution; the second, which was finally selected and included in the Decision, would derive this right from Article 36; and the third, which I will attempt to present in this opinion, would recognise it as a right that is justified and substantively filled by both of the mentioned constitutional provisions. In addition, thanks to Judge Pavčnik, during discussions the idea arose that this right is also an expression of the principle of a social state or at least that it is tightly connected with this principle. Whereas the final Decision does not refer to the principle of a social state, below I will devote some attention to the role of this principle in the context of the present Decision, as it is nevertheless connected with its main message to a certain extent.

2. Is the right to respect for home an expression of the inviolability of individuals’ privacy, which is protected by Article 35, or rather of the inviolability of dwellings, which is protected by (the first paragraph and the first part of the second paragraph of) Article 36 of the Constitution? As the conditions for a review of a potential interference with this right are the same in both instances, the choice does not seem particularly difficult if considered from a pragmatic point of view; however, from a conceptual perspective, the choice becomes more difficult if we compare the European Convention on Human Rights, which protects privacy in a single, albeit extremely open-textured, provision, to the Constitution, which contains a general definition in Article 35 as well as a number of provisions on the protection of certain aspects of privacy (the mentioned inviolability of dwellings, protected by Article 36, is thus followed, inter alia, by communication privacy, protected by Article 37, and information privacy, protected by Article 38). I believe that, similarly as in instances of the right to a fair trial, which is encompassed by a number of constitutional provisions,[1] we are dealing here with a right that is expressed through a number of constitutional provisions, in the case at issue namely through Article 35 as well as Article 36 of the Constitution.

3. It is already possible to find decisions in the existing Constitutional Court case law in which the Constitutional Court recognised specific aspects of privacy in both Article 35 and Article 36 of the Constitution.[2] In my opinion, the same applies to the right to respect for home that protects an individual’s right to reside in a specific place as well as the home as such, in the sense of both the right of an individual and the existence of a building. In the light of the circumstances of individual cases, the focus might shift more towards an individual’s ties to his or her home as a part of the individual’s identity or his or her physical or mental integrity and the general conception of privacy as protected by Article 35 of the Constitution, while in other cases it might shift more towards the spatial aspect of privacy and protection against inadmissible interferences with one’s home, which are included in the first paragraph and the first part of the second paragraph of Article 36. If, in the circumstances of the case at issue, I were compelled to choose between these two provisions, I myself would also choose the position that the Constitutional Court adopted in its Decision, i.e. that a decision on the removal of a building concerns the mentioned right determined by Article 36 of the Constitution. In different circumstances, however, other aspects of the right to respect for home that originate from Article 35 might be in the foreground; however, both mentioned Articles substantiate the right to respect for home as a legal standard.

4. Moreover, as were a number of other Judges, I too was drawn to the idea that the right to respect for home is concurrently also an expression of the principle of a social state; however, while I have some sympathy for this conclusion, I also have some doubts about it.

5. To illustrate this, I will briefly summarise the decision of the Constitutional Court of South Africa from 2000 in the related, although not completely identical, Grootboom case;[3] Albie Sachs, a judge of that court at the relevant time, also wrote about it in his renowned book.[4] The applicants in that case fled from poor living conditions and the danger of flooding to land situated higher that had not been built on. On this land they constructed temporary dwellings that the authorities demolished as illegal buildings and forcefully removed more than a thousand residents, among them both adults and children. These persons, who were left with almost nothing, then requested that the city authorities at least provide them with temporary shelter in accordance with the constitutional provision regarding the right of access to adequate housing, and, following a negative reaction by the authorities, they sought justice in the courts. The regular court decided in their favour and recognised the positive duty of the authorities to provide them at least the most basic means of living (tents, portable latrines, and water supply); however, it did not ground its decision in the constitutional provision on the right of access to adequate housing, which (only) required the state to adopt reasonable measures for the progressive realisation of this right in light of the available resources, but on the constitutional provision regarding the right of children to shelter, which, although weaker as regards its content, is unconditional. The competent state authorities lodged an appeal against that judgment before the Constitutional Court, which went even further in its decision: although it granted the authorities a wide margin of appreciation in determining the “reasonable measures” for the gradual implementation of the right of access to adequate housing, it held that a regulation which – contrary to the fundamental principles or values of human dignity, equality, and freedom – disregards the position of the poorest residents who live in particularly appalling circumstances due to homelessness, natural disasters, or the threat that their dwellings will be removed, is not reasonable. The decisive highlight of that decision might be that, as (all) constitutional rights are inter-related and mutually supporting,[5] the reasonableness of state measures must also be assessed in the light of human dignity.[6]

6. In my assessment, a comparison of both cases outlines the conceptual attraction as well as the substantive limitations of the link between the right to respect for home, as the Constitutional Court substantiated it in the case at issue, and the principle of a social state. As summarised by Slovene legal theory following the German model, the concept of a social state is closely linked with the obligation of the state to protect human dignity and ensure living conditions worthy of human dignity.[7] Although this is (too) rarely emphasised in such manner, the case law of the Constitutional Court also recognises the principle of a social state as an important constitutional good that is, inter alia, connected to the issue of human dignity.[8] Also in Slovene legal practice, it is likely that this principle will be emphasised most markedly in connection with the positive obligations of the state, inter alia, in connection with the provision of Article 78 of the Constitution, which is similar to that referred to in the cited South African case and according to which the state shall create opportunities for citizens to obtain proper housing.[9]

7. In such cases, the principle of a social state, as well as human dignity, can be seen as a sort of bridge between individualistic and communitarian approaches to fundamental rights or an attempt to attain the peaceful co-existence of the comprehension of the individual as an independent (and sometimes completely egoistic) holder of rights and the comprehension of the community as that which directs and limits the individual’s life. In other words, as was eloquently phrased by Sachs in connection with the Grootboom case, “[r]espect for human dignity united the right to be autonomous with the need to recognize that we all live in communities” and “the right to freedom with the right to bread.”[10]

8. The right to respect for home, as recognised by the Constitutional Court in the Decision at issue, does not include all such state obligations.[11] In accordance with the case law of the European Court of Human Rights, it is particularly emphasised as the protection of the individual from inadmissible state interferences with the individual’s protected living space.[12] However, such a negative conception of the right to respect for home can also be imagined within a system that otherwise does not accord particular significance to the principle of a social state (or the category of economic and social rights). Therefore, I have reservations with regard to the conclusion that this right is a direct derivation from the principle of a social state.

9. On the other hand, this right cannot escape the aspects of a communitarian approach to fundamental rights that indicate their relativity: they are limited by the rights of others and, subject to certain conditions, by the public interest. However, in the event of such balancing of conflicting rights or an assessment of the proportionality of an interference by public authorities with the right to respect for home, the assessment of a court must also take into account the principle of a social state and human dignity, including the concrete social position of the affected individuals.

10. Whereas the principle of a social state is thus, in my opinion, not inseparably linked with the existence of the right to respect for home as such, it may help in establishing or broadening the scope of this right, whereby the direct constitutional basis of this right is to be found in Article 35 as well as Article 36 of the Constitution.

Dr Matej Accetto

Judge

[1] See, e.g., Constitutional Court Decision No. U-I-92/96 (“Contamination by Inadmissible Evidence”), dated 21 March 2002 (Official Gazette RS, No. 32/02, and OdlUS XI, 45), Para. 28 of the reasoning (which places the right to a fair trial in Articles 22 and 23 of the Constitution); No. U-I-319/00 (United by the Linden Tree of Reconciliation), dated 11 September 2003 (Official Gazette RS, No. 92/03, and OdlUS XII, 74), Para. 21 of the reasoning (which places the fundamental right to a fair trial in Articles 22 and 23 of the Constitution, in that case also linking it to Article 29 of the Constitution, which determines defendants’ minimum rights in criminal cases); and No. Up-460/14 (Godec), dated 5 march 2015 (Official Gazette RS, No. 28/15), Para. 6 of the reasoning (which recognises the right to a fair trial as a legal standard guaranteed by a number of constitutional provisions, primarily Articles 22 and 23 of the Constitution).

[2] See, e.g., Constitutional Court Decision No. Up-32/94 (“Joint Tenancy of an Apartment”), dated 13 April 1995 (OdlUS IV, 38), Paras. 12–14 of the reasoning; and No. U-I-115/14, Up-218/14 ("The Privacy of Attorneys”), dated 21 January 2016 (Official Gazette RS, No. 8/16), Paras. 26–30 of the reasoning (wherein the Constitutional Court found that the privacy of attorneys comprises a number of aspects and that it is protected by Articles 35, 36, and 37 of the Constitution). Cf. also Constitutional Court Decision No. Up-1293/08 (Ilibašić), dated 6 July 2011 (Official Gazette RS, No. 60/11), Paras. 21–23 of the reasoning (wherein the Constitutional Court rooted protection from an inadmissible search of a vehicle in Article 35 of the Constitution by referring to Article 36 thereof).

[11] There is a reference, although brief (in Para. 8 of the reasoning), to the link between the individual and the community or the position that settling in a specific place enables an individual to form a relationship with the community surrounding him or her.

The common thread running through this case is the application of Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms (Official Gazette RS, No. 33/94, MP, No. 7/94 – hereinafter referred to as the ECHR) and its position within the constitutional framework. Article 8 of the ECHR regulates, inter alia, the right to home and belongs to the group of so-called qualified rights, meaning that it is neither an absolute nor a limited right. Therefore, (following the establishment of whether a home is in fact at issue) the right itself must be balanced against its restrictions that are necessary in a democratic society. The Decision primarily resolved a procedural issue – whether someone (a member of the Roma community) has the right to judicial protection that will ensure an independent, objective assessment of the potential existence of circumstances that justify the non-enforcement of a decision to remove a building. However, in addition to this, an issue regarding content also arises. As soon as we establish that such a right exists (as is required by the European Court of Human Rights – hereinafter referred to as the ECtHR), the question arises as to the circumstances that prevent the removal of a building and the test under which such circumstances have to be reviewed. The ECtHR also approaches Article 8 of the ECHR, particularly its second paragraph, concurrently as a matter of procedural and substantive law.[1] This premise will be relevant for understanding this opinion.

However, before turning to these questions, I also wish to clarify that in this concurring opinion I would like to illuminate certain substantive aspects of the Decision, present my understanding of them, and explain why I, consequently, voted for the Decision, even though I was aware of the consequences it will have for administrative authorities and especially for the Administrative Court and the Supreme Court (until the legislature regulates these questions and/or (probably[2]) also subsequently).

I will specifically address three points, namely:

the question of the major premise of the right to home, i.e. Article 35 or Article 36 of the Constitution;

why it is feasible to treat the Roma and all other residents equally with regard to the question of access to judicial protection, despite the fact that the request for a review of constitutionality before the Constitutional Court was submitted by the Administrative Court in judicial proceedings initiated by a plaintiff who was a member of the Roma community; and

what the approach of the ECtHR to the interpretation of the right to home (which the Constitutional Court followed) thus entails for the workload of the administrative authorities and courts in the Slovene context of massive illegal construction.

Ad (i): What the ECtHR wants to communicate to the contracting states is that the right to home is connected with the right to privacy – i.e. a different comprehension of an individual’s home than the mere administrative law approach of permission to build on and use a piece of real property. The latter is merely formalistic and was perceived more or less as such in Slovene law in the past. The ECtHR, however, links the right to home to dignity, to an individual’s being, his or her family life, and his or her privacy. Precisely due to the fact that the test and the ECtHR’s perception of interferences with an individual’s privacy concerning his or her home are so exactly defined and concurrently tightly connected with privacy, which serves as the framework for our understanding of the right to home, the question arises of where within the constitutional framework, which does not specifically regulate the right to home, this right should be positioned. In my opinion, placement under Article 35 of the Constitution would be more closely connected with Article 8 of the ECHR. It would share the same premises with Article 8 that I have mentioned above. These premises are the foundation of the essence of the matter, i.e. privacy (and thus also the aspect of human dignity) in connection with the right to home. Such entails that individuals have, in principle, a right to a shelter that is more than merely a roof above their heads, as it also encompasses their privacy[3] and physical and moral integrity.[4] The spirit of such is reflected more clearly in Article 35 than in Article 36 of the Constitution, which includes elements of penal policy, when repressive authorities are authorised to enter a dwelling or home in specific instances.[5] While it is true that also the content of Article 36 of the Constitution is in fact the content of Article 8 of the ECHR, the framers of the Slovene Constitution divided these two contents and adopted a special regulation of the right to privacy as regards interferences by repressive authorities. As they did not also adopt a special regulation of the right to home, the case raised the question of whither this right gravitates more strongly. While the majority chose Article 36 of the Constitution, I was of the opinion that it should have been Article 35. An additional argument (in addition to gravitating towards the premises of Article 8 of the ECHR) lies in the fact that it would be easier to apply Article 35 of the Constitution in instances when the right to home would also encompass buildings that are not homes in the strict meaning of the word (i.e. business premises, as I will explain hereinafter).

Article 36 of the Constitution does not link the right to home to privacy or personal life and therefore also not to dignity. When (or if) questions regarding the further interpretation of the right to home arise in the future, and are more tightly linked to privacy than the case we decided on, further difficulties regarding an evolutive interpretation of Article 36 of the Constitution might arise. The issue of illegal buildings (and judicial protection in such instances) could have consequences not only for individuals’ homes, but also for buildings that are closely connected with someone’s ability to exercise his or her right to home (e.g. a workshop for a craftsman, business premises, stables or a barn for a farmer, etc.). The ECtHR has stretched Article 8 of the ECHR to also include business premises,[6] and it would be easier to evolutively interpret Article 35 of the Constitution in this direction than Article 36 thereof. This was one of the reasons why I advocated for a more originalist interpretation of Article 36 of the Constitution (i.e. that we would not have extended this provision to areas outside the framework of criminal law) and the inclusion of the right to home in Article 35 of the Constitution. I did, however, support the inclination of the Constitutional Court to not substantiate the right to home only on the basis of Article 8 of the ECHR, as this right can be substantiated and interpreted in the light of the ECHR on the basis of the major premise from the Constitution.

Ad (ii): The second idea I would like to discuss in this opinion is the issue of the individual position of members of the Roma community and ensuring equal legal protection in instances of interferences with the right to home also when other individuals are concerned. The request for the review of constitutionality submitted by the Administrative Court proceeds from the circumstances of the plaintiff, who is a member of the Roma community, and concentrates on the position of the Roma.[7] The Constitutional Court broadened the review and did not concentrate only on the approach of positive discrimination.[8] I agree with this even though it prima facie entails that courts will be burdened by lawsuits challenging measures such as demolition (in instances when inspectors will not grant motions to suspend enforcement). Given the high number of illegal buildings in Slovenia (further regarding such, see ad (iii) hereinafter), this fear is justified. The Decision conveys the message that, in a procedure preceding a demolition, such an interference (provided there is an interference in the sense of the demolition of a home[9]) with an individual’s private sphere must be decided on by an independent and impartial third party – as a general rule, this is a court, not an administrative authority or other representative of the executive branch of power. This, in turn, entails that, in the event of mass lawsuits, the courts will experience an additional factor that might paralyse them in efforts towards attaining the standard of effective adjudication. We are forced towards this decision by the ECtHR’s clear position that in such instances the right to judicial protection must be enjoyed by everyone;[10] not only the Roma. However, this is a procedural and not concurrently a substantive aspect. It is important that these two aspects be distinguished. As I wrote at the very beginning of my opinion, the second paragraph of Article 8 of the ECHR has two elements: a procedural one and a substantive one. The Decision of the Constitutional Court only refers to the procedural aspect, not to the substantive aspect. Whereas I can advocate for the position that the procedural aspect applies to everyone (i.e. that every individual enjoys the right to judicial protection in the framework of which it will be decided whether there exist reasons due to which a demolition should not be enforced), this is not true with regard to the substantive aspect. Let me explain why (I will only provide a phrase or two on such at this point and analyse it more thoroughly below, as I would first like to highlight a consequence that should, at least in my opinion, reduce the pressure on the courts): if the substantive conditions as formulated by the ECtHR with regard to instances of Roma settlements are a reflection of positive discrimination, they cannot be applied in all cases. As I will analyse below, important differences exist between cases concerning members of the Roma community and other types of cases. This entails that although judicial protection is ensured to all, the conditions for such are not the same for all. Cases that do not concern members of the Roma community simply will not be reviewed in accordance with the criteria (i.e. the test) that is applied to members of the Roma community and which is more favourable for them. It further follows from such that judicial protection in the so-called other cases (I have no intention of insulting anyone who is not a member of the Roma community; this designation simplifies the clarification process) will not (should not) be adapted to the more favourable test. In other words, before seeking judicial protection, one should be aware that such protection will not be successful under the criteria developed for cases concerning members of the Roma community in cases that do not concern members of the Roma community. In the latter cases, the state retains a wide margin of appreciation with regard to spatial planning[11] and exceptions that can narrow this margin are not construed as broadly as in connection with Roma communities. In order to facilitate an understanding of the above, the test and the criteria that the ECtHR applies in cases concerning members of the Roma community have to be clarified; concurrently, the difference between these cases and other types of cases will also be clarified.

Article 8 of the ECHR is thus grounded in the right to home, which may be limited or interfered with under the conditions determined by the second paragraph. An interference first requires (i) a legitimate aim (such as the urbanisation of a specific area, the preservation of the natural environment or farm land, etc.). Usually this point is not problematic.

Problems generally appear in connection with the second condition (ii), i.e. the issue of a review of whether the interference with the home in question is necessary in a democratic society. This condition is only fulfilled if a societal need for the interference with the home is demonstrated and the interference is not disproportionate. Although the state enjoys a wide margin of appreciation with regard to planning spatial interventions, this margin is narrowed when it collides with the fundamental rights enshrined in the ECHR.[12] In such instances, the relevant state authority (as well as an independent and impartial third party – a court) has to assess whether such an interference is also consistent with the principle of proportionality and whether the right to home must be given precedence over other (legitimate) aims of the state.

What does the above entail for cases concerning members of the Roma community? This was most precisely clarified by the ECtHR in its Judgment in Yordanova (wherein it did not stop at only a principled condition of proportionality).[13] Cases concerning members of the Roma community differ from other cases due to the following:

they are closed communities, frequently not integrated into the broader society, with specific characteristics that distinguish them from the rest of society (e.g. life in a community and strong ties with such; reservations regarding displacement and splitting up the community; due to the closed nature of their community, their integration in cities is more difficult);

settlements are often built on land that does not belong to the Roma;

attempts at urbanisation frequently require that a number of homes that are illegal buildings be vacated and demolished – thus mass evictions from a specific area are at issue, which can result in serious consequences due to the loss of homes and, due to the large number of persons affected, significantly interfere with the social character of the community;

states are specifically bound to resolve the issue of Roma integration also on the basis of international instruments;[14]

therefore, in contrast to other cases that do not concern members of the Roma community, states are under a positive obligation[15] to resolve their housing difficulties, taking into account their socio-cultural background;[16]

as an underprivileged group, they may expect, also in light of the international context, that states will help them.

Due to such different circumstances, the Roma have to be treated differently in order to ensure compliance with the principle of equal treatment. This different treatment becomes evident precisely through the principle of proportionality. If applied to cases concerning members of the Roma community, this entails that the positive obligation of the state to examine alternative housing or spatial plans that would enable, if possible, legalisation, to prepare plans that will treat the Roma community as a particularly vulnerable group and to take into account their specificities, also as regards their homes or their right to home, which differs from the right to home in other cases,[17] to determine measures for preventing homelessness,[18],[19] and to provide them with access to social housing and integration programmes, especially in instances when members of a Roma community are being separated,[20] whereby, in instances of (serious) violations of regulations by members of the Roma community, integration programmes must also include repressive measures, as the absence of such must not be compensated for by evictions, demolitions, etc.

To sum up, what the ECtHR requires with regard to the assessment of cases concerning members of the Roma community is that their underprivileged position is taken into consideration and that they are differentiated from other cases on this basis. Due to their underprivileged position, they first require assistance, alternative measures, etc., and only subsequently – and of course potentially, as they might reject such alternative measures, etc. – the process of demolition, eviction, etc., may continue.[21] This in turn entails that the substantive aspect of the second paragraph of Article 8 of the ECHR is not entirely universally applicable to all individuals equally. I will explain below to what extent the cases that do not concern members of the Roma community[22] differ.

In contrast, the procedural aspect (access to court before a demolition in accordance with the principle ubi ius, ibi remedium) has to be ensured to everyone universally. This is the reason why I voted for the Decision, even though I fear it might create pressure on the courts. However, there is in fact no other way – access to court before a demolition, eviction, etc., is also a clear requirement according to the ECtHR.[23] It also appears to be important that attention be drawn to the fact that other cases that do not concern members of the Roma community cannot be built on exactly the same objections under substantive law (within the review of an interference with the right to home from the perspective of whether it is necessary in a democratic society and proportionate. In Ivanova and Cherkezov v. Bulgaria,[24] which did not concern members of the Roma community and wherein the state required the demolition of an illegal building, the ECtHR adopted the following positions, which are also important for this discourse:

the ECtHR did not agree with the national courts that an illegal building is in itself sufficient to allow the severe sanction of demolition without the need to carry out a proportionality test;[25]

whereas Article 1 of the First Protocol to the ECHR (protection of property) can allow for severe state measures, such as demolition, this does not apply with regard to Article 8 of the ECHR, which specifically protects the right to home;[26]

the court must consider less severe (invasive) measures (the principle of proportionality);

although, on the one hand, the ECtHR deems that the interest of the state that the system of building permits (and thereby the regulations governing spatial interventions) be observed has to be taken into account, it only recognised a serious threat to such a system as a criterion for a potentially justified interference, and in the case at hand it added (in passing) that it trusts that the competent authorities will be able to overcome the threats to this system.[27] It also added that the state could only succeed with such arguments in exceptional cases.[28]

The message of this ECtHR Judgment is surely also that while differences between cases concerning members of the Roma community and other cases continue to exist, they are not such as to render them completely different; both types of cases are subject to a test to establish which interferences with the right to home are still consistent with the principle of proportionality in a democratic society.

However, the ECtHR is also not consistent in this regard. This is confirmed by a partly dissenting opinion in that case.[29] Judge Vehabović could not agree that the test of proportionality would have to be applied in each and every case of a demolition order. He referred to the Grand Chamber Judgment in Depalle v. France,[30] and Hamer v. Belgium,[31] wherein the ECtHR did not require an immediate assessment.

The latter is significant and I find it difficult to accept this elimination of the borders between cases concerning members of the Roma community as a vulnerable group and other cases. With regard to a home built in bad faith on farmland,[32] in a protected area, or on someone else’s land, the question arises, for example, whether the proportionality test cannot “stop” at a demolition. I will address such in point ad (iii) and draw connections with the situation in Slovenia. I will attempt to anticipate the consequences for administrative authorities and especially for the courts in instances of judicial protection against a decision to demolish a home.

Ad (iii): The trend and the messages of the ECtHR in cases regarding the right to home, as well as in cases regarding interferences with the right to property, are frequently that the state is the one who calls all the shots and therefore it bears a greater (positive) responsibility. When a state measure and the right of an individual collide, the effect of the individual acting in bad faith on this right frequently remains unexplained. The individual, e.g., ignores spatial regulations, does not pay for public services, or instances of other violations of laws, etc.[33] As I understand it, the case law of the ECtHR assigns the state the role of the one who calls all the shots, who thus has all the power, and this is in itself sufficient reason that the state may interfere with actions taken in bad faith, without violating any Convention rights (in particular also during assessment from the perspective of the principle of proportionality). In other words, despite the fact that someone acted in a (manifestly) illegal manner with the intention of abusing or circumventing a law (in fraudem legis agere) before or during different stages of an administrative procedure or judicial proceedings (e.g. also judicial enforcement proceedings), does not entail that a severe sanction (e.g. the demolition of a house) is allowed. The state will have to find a proportionate sanction – i.e. one that will attain its aim and that in doing so will affect the individual to the least extent possible, and within this framework it will have to decide whether the dwelling at issue may be sold at public auction or when an illegal building may be demolished. This perception is completely different from its traditional comprehension in the legal order – the severity of the violation is reflected in the severity of the sanction. I believe that the ECtHR signals that this is not the case when Convention rights are at issue. This also follows from the Vaskrsić case, which did not refer to an illegal building but to an interference with property, with regard to which the margin of appreciation regarding authoritative measures is even broader than with regard to Article 8 of the ECHR.[34] Whereas in that case the ECtHR established that the individual acted in bad faith, it did not continue to pursue or address such in detail.[35] However, such a discussion regarding Vaskrsić is necessary in order to facilitate an understanding of the approach of the ECtHR. The perception of the right to home and of everything an individual needs in his or her private sphere to be able to lead a decent life has a special place in the jurisprudence of the ECtHR.

We thus arrive at a paradox that is accentuated when there is a great number of illegal buildings in a state: on the one hand, the authorities face restrictions on interferences with the right to home and the fraudulent nature of an individual’s actions must not be reflected in the sanction, which would manifest itself exactly as an interference with the building that caused the fraudulent state of affairs (the illegal building), and, on the other hand, the number of such buildings, which should not exist at all, is very high. In other words, in order to maintain consistency with the principle of proportionality, the sanctions will not always be allowed to affect the building as such. A case such as Vaskrsić could result in a different sanction that would not affect the building and would not be connected to the fraudulent acts. However, with regard to illegal buildings, where the essence is in the construction itself, e.g. on farmland, the restitution of the previous state of affairs should remain a proportionate sanction. In cases that do not concern vulnerable groups, the right to home should not prevail over an illegally acquired home in the sense of the relationship with another individual (e.g. the illegal or even forceful occupation of someone else’s apartment or home). However, as I wrote in point ad (ii), the ECtHR is not completely consistent in this regard.[36]

What can be concluded on the basis of the above is that decisions to demolish will be the subject of review, in which the courts will also have to review the proportionality of the measure at issue. I believe that the application of this to Slovene cases will not be easy (for neither the administrative authorities nor for the courts), as the number of illegal buildings is extremely high (I am afraid it might be so high that the official figures are not even an approximation of the actual situation, while the number of pending inspection procedures goes well into the thousands). For years, landscape architects have been drawing attention to the fact that we have had decades of improper spatial interferences,[37] and I would like to add that we have never developed a culture of spatial interventions in the sense of a system in which permits are consistently sought, dispersed construction is limited, and extensive areas of the natural environment (and space for wildlife) are preserved, where no construction would take place or where construction was concentrated, while the remaining space would be preserved as untouched natural space. Moreover, as a consequence we also significantly burden the environment through public infrastructure, which every building requires, whereby the fact that a building is illegal does not prevent such. It is thus not surprising that Slovenia is in the leading position as regards the number of kilometres of motorways per capita in Europe.[38] It is further not surprising that highly dispersed construction patterns prevent the completion of the sewage treatment network and the European Commission initiated an official procedure due to Slovenia’s failure to fulfil its obligations as regards waste water treatment (as we were not able to complete the construction of the sewage treatment network, in spite of an extension of the deadline).[39] I could provide numerous further examples and arguments as to why Slovenia has not developed a high culture of interventions with space, which is a finite good, and what consequences this entails, but such is not the primary purpose of this opinion.

I only wish to connect this position to the fact that we are caught in a particular paradox, which I described above, and the perception of the ECtHR, regarding which I wrote above, renders its resolution more difficult: on the one hand, we have a high number of illegal buildings that are concurrently also homes to which public service providers have been supplying services, issuing receipts for such, and creating in their owners the impression that the state accepted their illegal buildings and allowed them the right to home. I do not generalise this statement so as to include everyone, but where it can be applied to an individual case it must be deemed that an individual, by the authorities’ tacit consent, established his or her privacy that falls within the ambit of the definition of a home. On the other hand, the interferences of the authorities with such are always limited. We are no longer concerned with the mere formal conduct of an inspection procedure that does not consider the proportionality of the interference and whether it is necessary in a democratic society, and judicial protection does not prevent its enforcement (which is at the core of this case). How the legislature will regulate this review from a procedural aspect, and who is to be competent regarding such, is, of course, a matter of its competence and assessment. In any event, the review of the circumstances of a potentially unjustified state measure will be conducted, already prior to enforcement, before the courts, which will thus be heavily burdened. I believe that to follow the case law of the ECtHR, which, as follows from my above discourse, sets the bar for state interferences very high (i.e. it is strict from the state’s point of view), and to follow it also in instances of fraudulent conduct, without a critical consideration of the Slovene particularities, will not always be the best solution; put differently, I believe that the systemic consequences should also be taken into account.[40] This entails that a “dialogue” with the ECtHR would have to be established.

The specific Constitutional Court Decision at issue concerns a vulnerable group and therefore the mentioned “dialogue”[41] with the ECtHR is not necessary; I agree with the latter position of the ECtHR in this case, but I am not sure that I personally would apply the same substantive assessment to every case concerning a decision to demolish that does not refer to vulnerable groups and the illegal buildings at issue interfere with the general interests of the state, the environment, or nature. I find the positions expressed in the partly dissenting opinion in Ivanova and Cherkezov v. Bulgaria more convincing.[42]

In order to reduce the problem of numerous proceedings before the courts that will have to assess decisions to demolish, the executive branch of power would have to react quickly – it would of course be best if it ensured that illegal buildings would never be completed, as they would have to be stopped in time, and thus inappropriate spatial interferences (e.g. too much dispersion, interferences with nature and its biotic world, construction in landslide areas or flood areas, etc.) would be prevented, while, once an illegal building is constructed, the situation of the specific individual will have to be considered in the ensuing administrative procedure and judicial proceedings. The formulation of clear positions, such as that the removal of an illegal building from farmland[43] or protected areas does not constitute a disproportionate measure, would also reduce the number of disputes in courts.[44] The “processing” of these cases will namely be a great difficulty, even if the cases are unfounded. And as in such cases protection before the ECtHR will undoubtedly be sought, a “dialogue” with the ECtHR will have to be established, beginning with convincing reasoning as to the greater systemic problems[45] caused by illegal buildings in Slovenia, which I have highlighted in this opinion.

Dr Rajko Knez

Judge

[1] See McCann v. the United Kingdom, the Judgment in case No. 19009/04, 13 May 2008, Para. 26, and to the same effect Yordanova and Others v. Bulgaria, the Judgment in case No. 25446/06, 24 April 2012, Para. 118(iii).

[2] How the legislature will regulate the right to judicial protection, which is what the Constitutional Court Decision requires, is a matter of its competence.

[3] As the Council of Europe clarifies in the Guide on Article 8 of the European Convention on Human Rights: “Given the very wide range of issues which private life encompasses, cases falling under this notion have been grouped into three broad categories (sometimes overlapping) to provide some means of categorisation, namely: (i) a person’s physical, psychological or moral integrity, (ii) his privacy and (iii) his identity. Sub-groups and examples of cases are given in each category.”, p. 16 (Council of Europe/European Court of Human Rights, 2017, 1st edition).

[7] In particular, Para. VII of the request for a review of constitutionality in this case, No. I-U-82/2014-8, dated 6 March 2014.

[8] Such does not entail that the Constitutional Court would deny the possibility of positive discrimination, which has been demonstrating positive results with regard to the integration of different minorities into the environment from a comparative perspective. The more intense the globalisation process becomes, the more importance it gains; whereas some decades ago positive discrimination was merely an exception, instances of good practices regarding such have since become widespread. The fact that the Constitutional Court extended the issue of illegal buildings to everyone does not entail a denial of the significance of positive discrimination. The discussions at the plenary session did not go in such a direction, quite the opposite.

[9] Thus, this does not apply to every piece of real property, such as holiday homes. Some of the buildings I mentioned above as being included in the framework of Article 8 (business premises) do not constitute homes. As the term home is defined by the Decision (in accordance with the jurisprudence regarding Article 8 of the ECHR), no discourse regarding such is necessary. The question of when a home is at issue is also a question of the concrete circumstances.

[10] “Since the loss of one’s home is a most extreme form of interference with the right under Article 8 to respect for one’s home, any person at risk of an interference of this magnitude should in principle be able to have the proportionality and reasonableness of the measure determined by an independent tribunal in the light of the relevant principles under Article 8, notwithstanding that, under domestic law, he has no right of occupation.” See Yordanova and Others v. Bulgaria, the Judgment in case No. 25446/06, 24 April 2012, Para. 118(iv), Kay and Others v. the United Kingdom, the Judgment in case No. 37341/06, 21 September 2010, Paras. 67–68, and 74, Orlić v. Croatia, the Judgment in case No. 48833/07, 21 June 2011, Para. 65.

This is also consistent with the saying ustitia nemini neganda, namely that no one may be denied legal protection (literally: justice).

[11] The ECtHR opined that “[i]n so far as the exercise of discretion involving a multitude of local factors is inherent in the choice and implementation of planning policies, the national authorities in principle enjoy a wide margin of appreciation” (see, e.g., Buckley v. the United Kingdom, 25 September 1996, Para. 75 in fine, and Ćosić, op. cit., Para. 20); see also Yordanova, op. cit., Para. 118(i).

[12] In Paragraph 118(ii) of the Judgment in Yordanova (op. cit.) the ECtHR expressed this with the following words: “On the other hand, the margin of appreciation left to the authorities will tend to be narrower where the right at stake is crucial to the individual’s effective enjoyment of intimate or key rights. Since Article 8 concerns rights that are of central importance to the individual’s identity, self-determination, physical and moral integrity, maintenance of relationships with others and a settled and secure place in the community, where general social and economic policy considerations have arisen in the context of Article 8 itself, the scope of the margin of appreciation depends on the context of the case, with particular significance attaching to the extent of the intrusion into the personal sphere of the applicant (see, among many others, Connors, cited above, § 82).”

[13] See also A. Remiche, Yordanova and Others v. Bulgaria: The Influence of the Social Right to Adequate Housing on the Interpretation of the Civil Right to Respect for One's Home, Human Rights Law Review, 12:4 (2012), p. 791.

[14] As the United Nations Committee on Economic, Social and Cultural Rights determined in its General Comment No. 7 concerning forced evictions and the right to adequate housing under the International Covenant on Economic, Social and Cultural Rights: “[…] evictions should not render persons homeless or more vulnerable to human rights violations.” See also Paras. 73–82 of the Judgment in Yordanova, op. cit., where instruments of the UN, the Council of Europe, and the EU are cited that refer to the position of the Roma as a community that is more vulnerable with regard to human rights violations.

[15] See also D. Gomien, Kratek vodič po EKČP [A Brief Guide to the ECHR], Ministrstvo za pravosodje RS, Ljubljana, 2009, p. 79, and the case law cited in connection with the positive obligation of the state.

[16] That an “entirely different obligation” is at issue was also noted by the ECtHR in Yordanova, op. cit., at Para. 121: “[…] The principle of proportionality requires that such situations, where a whole community and a long period are concerned, be treated as being entirely different from routine cases of removal of an individual from unlawfully occupied property.”

[17] Particularly vulnerable groups require assistance and different treatment than other residents with regard to the issue of illegal occupancy. Such is in accordance with the saying ubi aequitas evidens poscit, subveniendum est, namely that help should be given where such is clearly dictated by justice.

However, this does not entail that everyone automatically has a right to home – in the sense that he or she must simply be provided the possibility of a home or a home must be procured for him or her. This must be distinguished. Also held by the ECtHR in Yordanova, op. cit., Para. 130.

In Roma settlements, the right to property is an inferior right, but such must not be applied to cases that do not refer to members of the Roma community. Similarly, see also A. Remiche, op. cit., p. 796.

[18] This is particularly important in contexts where a state has tolerated, for a long period of time, the occupancy of land owned by others and illegal buildings, and perhaps even provided public services and thereby created the impression that the residents do not have to find legal solutions or that they are safe from eviction.

[19] This condition has been particularly highlighted by the ECtHR; see also A. Remiche, op. cit., p. 797.

[20] The ECtHR also does not expressly problematise the fact that members of the Roma community did not initiate legalisation proceedings (although they could have done so). This follows from Paragraph 131 of the Judgment in Yordanova, op. cit.: “It is also true that the applicants themselves have not been active in seeking a solution (see paragraphs 13, 43 and 51 above). It appears that they are reluctant to seek social housing at least partly because they do not want to be dispersed, find it difficult to cover the related expenses and, in general, resent the radical change of their living environment that moving into blocks of flats would entail. However, Article 8 does not impose on Contracting States an obligation to tolerate unlawful land occupation indefinitely (see Chapman, cited above, § 96, which concerns a very specific and relatively narrow positive obligation to facilitate itinerant way of life which is determinative of an identity).”

[21] See Para. 133 of the Yordanova Judgment, op. cit.: “In general, the underprivileged status of the applicants’ group must be a weighty factor in considering approaches to dealing with their unlawful settlement and, if their removal is necessary, in deciding on its timing, modalities and, if possible, arrangements for alternative shelter. This has not been done in the present case.”

With regard to the possible selection of measures that would conform to the principle of proportionality, see Paras. 120–134 of the same Judgment.

[32] I have particularly highlighted farmland because it constitutes the essence of food independence, and, since its establishment as an independent state, Slovenia has lost 100,000 hectares of fertile soil – i.e. one fourth of its farmland – due to unsound planning and illegal construction. As a consequence, over the last ten years, 16,000 small farms have perished – i.e. four farms per day. For more on this, see A. Komat, Zemlja, voda, seme [Soil, Water, Seed], Samozaložba, Buča, d. o. o. The loss of farmland has resulted in Slovenia having the lowest amount of farmland per capita (surpassed only by Finland; interestingly, we have the highest number of m2 of shops per capita). See also R. Knez, World Soil Day, accessible at: http://www.jm-excellence.si/world-soil-day-4-of-december/ (7 November 2017), and the sources cited therein.

I only wish to add some thoughts in connection with interferences with nature and the environment, although I will not thoroughly discuss them as this would require straying too far from the essence of this opinion; dispersed illegal buildings touch upon systemic questions, such as the socialisation of the costs that arise if illegal buildings in flood areas are flooded, and, mutatis mutandis, in landslide areas, if the living space of wildlife is reduced, etc.

[33] I believe that the application of rules, such as volenti non fit iniuria – i.e. to the willing comes no injury – and that the duty to mitigate damage that has occurred or threatens to occur also applies to the damaged party, has unjustly been omitted in the process of the interpretation of Article 8. For more on this, see R. Knez, Skrb oškodovanca, da se škoda ne poveča (duty to mitigate) [The responsibility of the damaged party to prevent an increase in the damage (the duty to mitigate)], Revizor: revija o reviziji, 2007, Vol. 18, No. 9, pp. 70–79. I believe that the same applies with regard to the rules venire contra factum proprium – i.e. no one may set himself in contradiction to his or her own previous conduct – and estoppel – no one may invoke a right on the basis of his or her own mistake.

[35] This is reflected in two Paragraphs of the Judgment, namely Paragraphs 80 and 81. In the first, the ECtHR established a number of acts performed in bad faith and added that the national court failed to investigate his statements regarding financial difficulties and then continued, in Paragraph 81, as follows: “81. On the other hand, the Court notes that the debt […] was EUR 124 and that, together with the interest and enforcement expenses, it amounted to around EUR 500 […]. During that time the enforcement court did not consider any alternative measures […].”

It thus appears that what was important is what the ECtHR did not say. It did not assess what significance should be assigned to the omission of the payment of a debt and to other fraudulent acts. It was thus also not interested in the fact that the avoidance of payment occurred in the field of the supply of water and sewage treatment. An individual may not be deprived of water, and, with regard to sewage treatment, there is in fact no valve that the supplier of the public service could turn off to coerce the user of the public service who has been avoiding payment to pay his or her debt. The ECtHR simply directly proceeded with a clarification of the disproportionality of the measure.

[36] In addition to Ivanova and Cherkezov v. Bulgaria, Depalle v. France, and Hamer v. Belgium (all op. cit.), where the Court was not consistent in requiring (or not) the application of Article 8 of the ECHR and the proportionality test, which I have addressed above in point (ii). Cf. also Buckley v. the United Kingdom, the Judgment in case No. 20348/92, 25 September 1996, where the ECtHR was primarily interested in the procedural aspect of a case where an individual possessed no right of residence from the outset (although this case also concerned the Roma, this applies even more to cases that do not concern members of the Roma community). Similarly, see Lee v. the United Kingdom, the Judgment in case No. 25289/94, 18 January 2001.

[37] It thus does not concern only illegal buildings. However, the sum of the effects of illegal buildings and poor decisions regarding spatial interventions (e.g. too dispersed construction) leads to even worse results.

[38] Slovenia has 4 kilometres of motorway per 10,000 inhabitants, Germany is second with only 1.6 kilometres; we further have 198 kilometres of other roads per 10,000 inhabitants, Germany is second with 150 kilometres; Source: These data were calculated from Eurostat by Zavod RS za varstvo narave [Institute for the Protection of Nature].

[43] It is my personal belief that it would be the same if we justified theft through someone’s social and economic position.

[44] As the ECtHR argued quite clearly in Jane Smith v. the United Kingdom, the Judgment in case No. 25154/94 (Para. 118): “The Court is therefore not persuaded that there were no alternatives available to the applicant besides remaining in occupation on land without planning permission in a Green Belt area. As stated in the Buckley case, Article 8 does not necessarily go so far as to allow individuals’ preferences as to their place of residence to override the general interest (p. 1294, § 81)[…].”

[45] While this opinion does not raise all of the systemic questions (the available time and space do not allow me to do so), I wish to emphasise that they exist and that they will have to be presented to the ECtHR in a convincing manner. This has to be taken into account in the reasoning of decisions and judgments throughout the entire procedure. The Contracting States do not share identical factual contexts and factual situations that have to be considered when assessing the necessity of measures in a democratic society.

⇒

Type of procedure:

review of constitutionality and legality of regulations and other general acts

Type of act:

statute

Applicant:

Administrative Court, Republic of Slovenia

Date of application:

10. 3. 2014

Date of Decision:

12. 10. 2017

Type of decision adopted:

decision

Outcome of proceedings:

establishment – it is inconsistent with the Constitution/statuteannulment or annulment ab initio

Published:

Official Gazette RS, No. 66/2017

Document:

AN03862

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